1510715 (Migration)

[2015] AATA 3719

1510715 (Migration) [2015] AATA 3719 (27 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maxime Simon Michel Vidal

CASE NUMBER:  1510715

DIBP REFERENCE(S):  BCC2015/1670730 CLF2015/67691

MEMBER:Meena Sripathy

DATE:27 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

·cl.417.211(5) of Schedule 2 to the Regulations.

Statement made on 27 November 2015 at 5:18pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 July 2015 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 June 2015. At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.417.211(5) which requires that in circumstances such as this the Minister is satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of a working holiday visa.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) on the basis of a lack of evidence to demonstrate the applicant travelled to, resided and worked in the 4670 postcode area as claimed.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant carried out the requisite specified work in regional Australia?

6. Clause 417.211 requires, amongst other things, that at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111. The applicable instrument is IMMI 08/048.

7. In his application the visa applicant declared he undertook specified work with Akers Family Farms from 24 September 2014 to 13 January 2015 in the 4670 postcode area.  He was subsequently requested by the Department to provide evidence of specified work completed.  In response, he provided a completed Employment Verification Form 1263 and job description questionnaire claiming to have worked 8-12 hours per day, that he was paid into a bank account and that he worked as a picker.   He did not provide any bank statements, as requested. 

8. The applicant lodged with his review application, copies of his bank statement covering the claimed period of employment and pay slips for the full period. 

9. The Tribunal accepts that the work declared by the applicant comes within the ‘plant and animal cultivation’ category specified in the relevant instrument, and the postcode 4670 is included among the postcodes specified. 

10. The Tribunal has considered the bank statement evidence and payslips provided by the applicant. The bank statements demonstrate that he was paid wages in the claimed period by Akers Family Trust and these records are consistent with the pay slips provided, which also confirm the hours worked. Other transactions in the bank statements provided place the applicant in the claimed area in the period in which the specified work was undertaken.  On the basis of this evidence therefore, the Tribunal accepts his claims that he worked as claimed in the declared period. 

11. Departmental records before the Tribunal indicate that he arrived in Australia on 17 July 2014 on a subclass 417 visa which was valid until 17 July 2015.  

12. Therefore on the evidence before it, the Tribunal accepts the applicant carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa.

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.

    DECISION

14. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

    ·cl.417.211(5) of Schedule 2 to the Regulations.

    Meena Sripathy

    
    

    Member